THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
Amendmentr to the Divorce Laws.---Debate in Continuation.
HOUSE OF REPRESENTATIVES.
MONDAY, January 28, 1873.[CONTINUED FROM PAGE 84.]
The SPEAKER announced the order of the consideration of Mr. Woollen's bill [H. R. 333] concerning the granting of Divorces - the question being on the final reading thereof.
Mr. BOWSER proposed to recommit and amend the bill by adding a section providing that all actions for Divorce now pending, which have been commenced in good faith, shall be saved and exempted from the provisions of this act.
Mr. WOOLLEN. The reason I did not save the cases now pending was, because I regard the present law as the occasion of immorality. If it is right that we should change the Divorce laws so to change the conditions upon which they may be obtained, then it is not right that a divorce should be obtained under the existing law. We go on the supposition that the law is wrong now. Hence I thought all the cases now pending should be stricken down unless they come under the profession of this act. I know that this is striking at the interests of some in my own profession : but while I am on this floor I will vote for all bills as a representative of the people, and attend to my cases and clients as a lawyer when I shall go home.
Mr. HOLLINGSWORTH proposed to amend by providing in section 7, that no divorce shall be granted for any act commit-mitted whilst the parties were non residents of this State, under the said act so committed shall be a legal cause for a divorce in the State where the same was committed; and provided further, that no divorce shall be granted, except for the first of said causes, until three years after the date of the marriage, neither shall any divorced party be permitted to marry again within one year after the granting of the divorce.
These propositions were rejected.
Mr. SMITH moved to recommit the bill with instructions to add the following: "Provided that all actions for divorce now pending which have been commenced in good faith by bona fide residents of this act, and shall be exempted from the operations of this act, and shall be tried according to the law, as they stood when they were "commenced." - This bill (he said) proposes radical changes, and I think we ought not to make a law that would cut off these cases.
Mr. WOOLLEN. Public sentiment for at least ten years has demanded these changes in this law. Honest men have had it thrown into their faces, that the divorce laws of Indiana were a disgrace; and that is the public sentiment outside as well inside of the State. I would say that the the proposed amendment should not be made, because these changes are undoubtedly required by the public sentiment of the State.
I move that it be laid on the table.
The motion to recommit with instructions was laid on the table.
page: 377[View Page 377]Mr. MILLER. I must say that this bill is a singular mixture of good and bad - some of its provisions are pernicious - nothing but perniciousness. - I will raise a few objections to some of its provisions. Right at the threshhold, in the second section, it provides that all marriages prohibited by law shall be absolutely void. Now, the meaning of this is: That all marriages, whether taking place in this or in any other State of the Union, or in any Foreign Country are to be tested by the laws of this State. Every marriage shall be absolutely void, and without legal warrant if it does not stand the test of Indiana laws!A law might be passed in Ohio in Illinois in Kentucky or Michigan, under which parties might get married, and at the same time becoming citizens of our State, under our law the marriage will be absolutely void. Now, I say, sir, that, acting under the courtesy that should exist between the Stales of this Union, such a law ought not to be carried into effect. - And probably it is unconstitutional. - Then it is possible that the children of such a marriage born in the State of Ohio might be legitimate there, but, moving into the State of Indiana, the father might be prosecuted in each case for bastardy: And I think then a suit of this character now pending right in the face of the law which has stood for twenty years.
Mr. WOOLLEN. The law as it is forbids that. The gentleman will find in the bill; "if solemnized in this State." It should be there.
Mr. MILLER. It's not in my print. - The next objection is in section six. As the law now stands, the notice is given by publication, that the party may come in and defend, as in a case for alimony. The Supreme Court has held that it is against public policy to disturb the ruling of the Courts granting a divorce. But this bill attempts to go further: it says judgement shall be be opened and allowed on the questions of divorce as well as in cases as to the amendment of alimony. Then there is another objection: it says that, until the expiration of two years the parties divorced shall not be permitted to marry again. That looks well at the first: but then sometimes an innocent party is granted a divorce - it is a divorce to both parties. Then the party who is not in fault, who has conducted himself properly, is absolutely prohibited from marrying again for two years. - But the other party, living or removeing just across the line in another State, is at liberty to marry again the next day. That is the objection here. It is something like the decision of a Justice of the Peace in any town: when a man filed a complaint before him for assault and battery, he acquitted the defendant and lined the party complaining. - The seventh section of the proposed act provides, that the person at the time of the filing of said petition, must have been a bona fide resident of the State for two years. I think that provision right: and that is about all we can do to make our divorce laws as perfect as they can be made. Now, these laws are nearly twenty-one years old - they have been substantially in force in our State from the beginning. What is it then that has created this pubic opinion against them of which the gentleman speaks, either within or without the State? In nine hundred and ninety-nine cases out of a thousand it is because we have been granting divorces to parties living outside of the State - to parties who have imposed on our Courts. But with this additional safeguard : that the party petitioning shall be a resident of Indiana for two years.I undertake to say that our divorce laws are as good as those of any other State of the Union. - On the subject of the causes for divorce - this abandenment for three years I consider too long. A married woman can make no contract that will bind : and the abandoned woman is liable to have her husband come back anytime during this period, and compel her to contribute her property to him and annul her contracts. I think two years would be long enough. The fourth cause in the bill "cruel and inhuman treatment" does not mend it much. Fisher, in his work on divorce, says, "cruel" and "inhuman" mean the same thing, It means that the husband must become a brute something not human: he must beat the wife brutally - treat her like a brute - before the Courts of Indiana can grant her a divorce. If it were but a mere matter of taste, I would leave both the words "cruel" and "inhuman" out of the statute. - The fifth of these "causes" is one to which I have serious objections - the habitual drunkenness of either party for three years. It might be first rate as an amendment to the temperance law. For three long years the party must have been an habitual drunkard: it is not to be occasional - it must be usual - it must be habitual to be drunk: and not only that, but the party must have been habitually, absolutely drunk for three years? This might encourage drunkenness in some cases; but still it is true of some drunkards whom I have known, that the first thing that has caused them to quit drinking, has been the fear that their wives would leave them. I know of one such case, where the first thing that brought the man to his senses was the fact that his wife had brought suit against him for divorce. But I think it would be working backward for us to provide that the husband shall have been page: 378[View Page 378] an habitual drunkard for three years before such a step can be taken - it would be against public policy. - The sixth cause is, the failure of the husband to provide for his family for two years. So, for two years the man would have the right to avoid providing a living for his wife. I think the present law is better and safer than this. Whenever the Court conceives that the husband has failed to provide for his wife for a sufficient length of time to raise the persumption that he will continue to fail, that ought to constitute a cause of divorce. - The next objection to the bill is that it takes away the discretion of the Court as to the causes of divorce. This is an innovation - taking away a statute that has stood since 1852, and, with but a short interval, since 1831. In all that time this clause has remained: "and for any other cause which to the Court may seem proper." I undertake to say that in all the list of causes of divorce this is the best one - the best and wisest of all these provisions.I have seen stronger cases made out under that clause than any for the specially ennumerated causes; for they often come pretty near making out the cause - as the husband's drunkenness - his failure to provide, his cruel treatment, etc., He may have failed to provide for his family for the two years; but it is sometimes hard to make out the case with the requsite distinctness. He may not have care up to the full measure of the statutory requirement, and yet he may have transgressed in all these Courts. I know a case in which the husband was much older than the wife, and yet none of these causes could be proved. It was shown that she had left her husband; that she was ungenial to him, abused his children, etc; and yet the Court could not have granted the divorce if had not been for the discretionary clause.In twenty-ninth Indiana Reports it is held, that in many instances the causes for divorce may arise in which public policy demands that the parties should be separated; whilst the matinal statutory facts are unknown in the case the Court may be satisfied that the divorce should be granted. And I say again that it would not only be wrong to throw out this clause but it would be stultifying our State legislation on the subject for the last forty years. I am willing to leave a very large discretion in this matter to the Judges; and I remark that in Ohio and Illinois they have copied our law in this regard. We have been a little in advance of the age, instead of being a little behind ; and to-day there is scarcely a State in the Union which has not more liberal divorce laws, than they had in 1852 when our present divorce laws were enacted. - The author of the bill gets a little radical in Section 12. The law now requires the publication in a weekly newspaper - three successive insertions. - But this Section requires publication in the newspaper of the largest circulation, for the same term. Now it happens that such a paper is a daily newspaper: In one case the publication must be made in the weekly paper and in another in the daily paper, and in the daily it is for the same length of timeevery day for three successive weeks - that is twenty one publications. It would require that number of publications in this city, while in the smaller Counties it would be but three publications; and there is then inequality as to the expense. - These are the only objections that I urge; and they are good with me against going back and by this Legislation admitting that we have been wrong in our statutes upon this subject heretofore. I think it beneath the dignity of the State to repeal the statute because somebody has been talking and joking and writing about it; and where is the evidence that society has demanded these modification of the law regarding divorces?
Mr. MELLETT. I do not intend to say much as to this bill, but it occurs to me that the effort of the gentleman from Decatur (Mr. Miller,) ought to have some attension. The gentleman has given us a very fine dissertation on the social relations, and I should like to have his speech preserved. I think it would go down very well side by side with the works of Judge Miller. He has certainly discussed the question up and down and round and round. But now there is but one question to be decided, and that is whether we are going upon the right principal - whether our present ideas upon the social relations subject are correct. Whether a man shall have one wife if he can get one, and shall not have two - Is that right? It is certainly an old fashioned idea, and I believe in it. But the gentleman may have taken up with the later ideas of the Claflin and Woodhull fraternity - and (shall we say it?) it must be that their idea is correct. But the question is as I state it: are we right? If that is the case that a man shall have but one wife and stick to her; he shall know that he shall have no divorce without just cause. But at least there would be no talking about the hardships of caring for illegitimate children coming into the State under this bill (laughter.) I think it has been justly urged upon this Legislature that our present divorce laws are a disgrace for you make orphan children when you separate husband and wife; besides putting the wife in such a case that she will never be able again to take her just position in society. There was an amendment offered to this bill for a page: 379[View Page 379] saving clause here, and I am sorry that it was voted down. I would like to see it in this bill: not allowing either of the divorced parties to marry for two years. Would not the House make it one year? It does seem to me that it would be a wise provision to specify some time - one year, six months, three months - one year would be little time enough: for even I have knowledge of cases where divorced parties have not remained unmarried for an hour - where the new partner was ready to solemnize the new marriage as soon as the divorce was granted. And I believe the greater number of divorce cases have been carried up because the parties complaining have another marriage in view; and if that is the moving cause - to get out of the marriage relation in one case and get into that relation in another case - the parties should be compelled to stay out.
Mr. WILLSON of Ripley. It seems to me that this bill is of as much importance as any bill before the Legislature. We are attempting to change the law on which the very foundation of society rests, and it behooves us to consider before we act. There are some provisions in the bill of which I am strongly in favor. We are attempting to erect a barrier against the frauds which are practiced against our Courts, by non-residents; but there are also some provisions in this bill which I think ought not to pass. I am not one of those who believe that we ought to go back to the dark ages. I do not believe that society and civilization have suffered - by the advancement of the ages. As far as the question of divorcement in Indiana is concerned she may well be proud of what - has stood upon her statute books for twenty one years. I see no need of any Legislation to prevent the Judges from doing as they ought to do; but we ought not to encourage any law under which the Judges have not done right. As far as I know of the workings of our divorce laws it is almost impossible for a party to obtain a divorce under them. We are ready to disfranchise a man because he drinks intoxicating liquors immoderately, yet here we will legislate so as to compel the delicate female to live with a man who has fallen below the brute for three years! Sir, I think drunkenness for a single hour should be made sufficient cause for a divorce; and I say this: if he have persevered in such conduct for any length of time I do not think he is worthy of the marriage relation. I do not think the marriage relation can be of benefit to man or woman where the parties are unfitted for each other. I believe this union is by a higher sanction than that which is recognized in Common Law; and so I believe it would be better for society to extend our liberality in this regard than to contract it. But so far as the foreigners to our State are concerned I think it is here that we find the source of impositions ; and if gentleman think a residence of three four or five years would cure this I am willing to make that provision. But, when a man has ceased to be a husband, I think in that case the Court ought to have power to annul the marriage. I know there is a sentiment on this subject which is not according to reason, prejudicial to our divorce laws, and held by those who take their impressions from the news papers; but now here this State prevents the granting of a divorce except for ennumerated causes, and giving a discretion to the Court. Any lawyer of experience in the Courts knows tba there are cases sometimes in which there is such a strong combination of all these causes (but without establishing one of them) which taken in connection would make a sufficient ground for a divorce - all combined would make even a very strong case. As in the case of abandonment. But, under this bill, if the husband comes back one day before the three years expires then the wife is bound to accept him as her husband. Then he may have been guilty of beastial drunkenness for years, say for half that time, and she may be compelled to drag out with him the miserable existence of a drunkard's wife. Upon the whole, then, I must say that the passage of this bill would be a disgrace to the Legislation of Indiana. I think we should pause before we take a step backward toward the darkness of the past. - What objection is there to this old law? Here it is, and in it are contained the only cause for which parties should be entitled to divorce; and if there is any cause specified here which should not entitle any party to divorcement then let it be repealed. These causes are: first, adultry; - second, impotency; - third, abandonment for one year. Surely that is long enough, If the man abandon the wife for that length of time, then the marriage relation should be dissolved. To compel the parties to live together after that would be to bind them in a social hell. Then we have these causes; fourth, cruel treatment by either party towards the other ; fifth, Habitual drunkenness by either party for one year; sixth, the failure of the husband to make reasonable provisions for his family; sixth, conviction of either party of an infamacy crime; seventh, any other cause for which the Court shall deem it proper that a divorce shall be granted. There is the discretion of the Judge under this last head, where offences in connection with the other causes are combined.
page: 380[View Page 380]Mr. SHIRLEY. If there were only the man and wife in the case - if nobody else were interested - we might submit to the loss of standing in society which the gentleman from Delaware referred to; but there is a way of granting divorces which affects society in a sensitive part, that is in regard to children, you may seperate the man and wife for many causes, but the serious consideration is the provision for the children. When you seperate man and wife you throw these upon the world, and stamp upon them a diepargement that will go down with them to their graves. Why, sir, if we could agree with gentlemen who oppose this bill, we might throw away the marriage relation, change this thing of marrying - do away with the ceremony, and make another code. Think of a man lifting his hand to heaven for the performance of the obligations assumed in this ceremony, and it is made a mere mockery by our divorce laws. If I had my way I would make these restrictions against divorcement even stronger than his bill. I say, if a man makes a pledge to a woman in marriage, he ought to fulfil his obligations with the utmost scrupulousness. Yet I am willing to go with gentlemen for amendment in all cases that are reasonable and right. Some gentlemen object to this bill because of the hardship in its application to foreigners, and especially because they escape the penalty of marriage immediately. But our power stops at the State line - our Legislation cannot go beyond that. The gentleman forom Decatur is in favor of leaving the words as they stand: "cruel" treatment for one of the causes - leaving out the word "inhuman". I am in favor retaining it, and I am also in favor of punishing those who will be brutish in that way. If you put a strong barrier against divorcements, when parties come to negotiate about marriage they will consider the matter a little more seriously - they will consider and avoid hasty and inconsiderate marriages, because they will know that they must take the consequences of a lifetime engagement. I am in favor of this bill, and hope it will become a law; so that when a man and woman marries in Indiana, they shall remain husband and wife. As to drunkenness as a cause, I think it should be well certified; and while I am in favor of protecting the wife from the drunken and brutal husband, if I had my say in this matter, I might sometimes blame the woman for it; for if I were in her place I would have the courage to say to him; I will not leave you for getting drunk, I will not be divorced from you for such a cause. The case of divorcement is too easily gained in this way.
Mr. WOOLLEN. I want to say a few words in behalf of this bill. Only the most difficult parts as they occurred in the drawing up of the bill have come out in these objections; and even the friends of the bill have not gone into the matter so as to exhibit its merits. I think the great objection to the Indiana divorce laws has been occasioned by the facility with which foreigners could squat in our State and obtain divorcement from their wives in other States. A residence of one year has been sufficient - and it is now - to give the right to a divorce. This time is not long enough. This bill makes such residence two years. I should have made that as an amendment if I had not drawn the bill. Now these persons come here and obtain a residence in various ways, they will come here and buy an interest in some ten foot store, pay their rent on it, and go home. These impositions practiced upon our Courts have brought infamy upon the divorce laws of Indiana. For when the divorce is once obtained it stands forever. Although the defendant, the wife, may have been innocent, knowing nothing of the case, the divorce is granted forever, and cannot be reversed. Now the first good provision in this bill is to lengthen the time of residence - two years instead of one. The next good provision is that the residence shall be in good faith. The next good provision is that the residence shall be the same as that of any resident house-holder of Indiana - it shall be so proven - proven by resident witnesses - persons residing and being himself at the time a householder in the State of Indiana; so that all whom it may concern may know precisely where his witnesses may be found, and if they have perjured themselves they may be handled for false swearing. The old law provides that the publication shall be made in a weekly newspaper, so that the party living out of the State may possible hear something of the case. But in ninety nine cases out of a hundred it has been made ineffectual. This bill improves the old law in this respect: if a party obtain a divorce from and the party living out of the State, it provides that the defendant shall have two years time to open the case; and during that time the complainant - the carpet bagger who has come here for that business, is deprived of the privilege of marrying again. My friend from Decatur (Mr. Miller,) objects because this publication shall be in a weekly and daily paper, but that is a good provision; because in a County where there is a daily, a large portion of the people do not read the weekly papers, and these are the places chiefly where we want the notices to go. Now I wish to speak very briefly of two or three of the page: 381[View Page 381] causes of divorce; and, first, of that in the bill prescribing abandonment for three years. I would have been willing to vote for this bill if it had said for two years. What the gentleman from Ripley (Mr. Willson,) said about leaving the wife to suffering for three years I think a little exaggerated; for no Court would allow such a man to perpetrate such a fraud upon an innocent wife. The Court would say at once that when the absconding husband returned and offered himself, as he might prove, the wife very properly declined to recive himthat when he professed that he offered himself and went away again the Court would say he perpetrated a fraud, and intended to do so; if the wife declines to live with him it is sufficient to show the abandonment "cruel and inhuman treatment." The old law says "cruel" treatment. I know of one lady who was divorced because her husband tapped her on the shoulder. I know of another case where the husband had children, and the wife went to her mother, and staid there from fear that they would maltreat her. The Court decided that it was cruel treatment. We must put language into the Statute which the Court is bound to abide by and observe, for I know that the abuses of this law belongs in some cases to the Courts, and we must frame the law so as to avoid that; hence we combined these words "cruel and inhuman." But let it be remembered that the husband who is cruel toward the wife is amenable to the criminal law. The next provision is drunkenness for three years. No man will become a confirmed drunkard at once. There is no man who is a man, but his wife can reform, and the law should give her at least three years for her work. It is through the course of years that a man becomes a confirmed drunkard; and if the wife has the right spirit - if she has the proper affection for the husband - if she clings to him (as somebody has said) "like the vine to the riven oak"she will cling to him through three years - aye, three times three years in such a trial, and through all this period the wife's influence will have more power to reform him than all things else; and as you take away or as you shorten this period of probation you diminish and destroy the wife's influence - you take away from the husband the most potent influence for his reformation. It is the wife's influence that reforms the husband and this bill says she shall make the trial of it for three years: and if she have the right spirit she will not think it long; and the result will show that her time was well spent. The next "cause" in the bill is the failure of the husband to make reasonable provisions for his family for two years, the old statute says one year. This is a very short time, it seems to me. But, Mr. Speaker, the provisions of this, bill will have this effect; they will at least remove the odium of our present divorce law. When I came first into the State of Indiana, I observed, as a boy, the wonderful march of public opinion against us in this direction. I have heard young men and young ladies say amongst themselves that it is not a very serious thing to get married; for, if you are not pleased, you can get a divorce. The idea was that marriage is a mere experiment. And I think a pretty large number of marriages are made under some such impression as this; and with such sentiments in society as to marriage and divorce laws, I say that it is time to correct this evil - this pernicious public opinion, for the law becomes public opinion, and it should be placed on a higher plane of public morality, and be judged by higher standards. Let it be understood by the young, when they enter into this relation of marriage that it is not an experiment, but a solemn and legal and religious compact for life. Let this be understood, and divorcements will become extinct, and marriages will be contracted with right views of the sacred relations of husband and wife. - The odious seventh clause of the causes of divorce which has brought so much infamy upon our State is here abolished - that old clause which allows the Court for every cause which it might deem proper to divorce man and wife devolved too large a discretion upon the Judge. Which he had concluded -
Mr. WILLARD demanded the previous question; but he withdrew immediately for -
Mr. CLARK, who said he was glad to hear the genteman from Johnson call the old divorce law infamous; but sorry to hear the gentleman from Ripley making light of the bill, as drifting back to the dark ages. It seemed to him that the family is the foundation of government. The greatest law giver that was ever upon earth, and whose laws above all others should be obeyed, gave but one cause whereby a man and his wife may be seperated. He considered that the gentleman from Decatur and others might be disposed to reverse that law so far as to give other causes for divorcement. He (Mr. C.) was from the State of North Carolina, and never knew of a case of divorce while he was there. The bonds of the marriage relation were stronger than these Statutes; and we should bring our Statutes as nearly as possible into conformity with the divine law. He considered himself supported in this declaration by page: 382[View Page 382] the intelligence of the age, that the nearer we approach to the divine law in this respect the better it will be for us. This at least stands good back to the dark ages, but it seems now strangely to be an advancement to make our Statutes conform to the principles of Christianity! He added; I would be glad to see this bill bettered; but it is good enough to command my vote; and I hope gentlemen will all vote for it.
Mr. WOOLLEN desired to apply an amendment to the bill which had escaped his notice till the gentleman from Decatur (Mr. Miller,) called his attention to it. He desired to make the bill read in the clause something like this. "All unlawful marriages solemnized within this State shall be null and void without process of law."
The SPEAKER. If there is no objection the amendment will be taken by consent.
VOICES. "No, no."
Mr. WOOLLEN. I will then ask the House to refer the billl look at it from the stand point of the interest of the State. It is for that, that the bill has been drawn. If gentlemen do not consent that the bill may be amended as I desire, I will ask that it may be recommitted.
VOICES. "No, no."
Mr. WOOLLEN. Then I desire to say to the friends of the bill that it can be amend-ded in the other end of the Capitol we can conquer there.
Mr. WILLARD now renewed his demand for the previous question; and there was a second, and the main question was ordered to wit: Shall the bill pass?
The yeas and nays thereon resulted - Yeas, 56, Nays, 21.
So the bill passed the house of Representatives.
